The Unhappy Triumph of Partisanship

So it ends, not with the bang of an election-night celebration trumpeting U.S. democracy but with the whimper of a judicial decision ensnared in tawdry politics. As in 1876, another great election-year disaster, lofty declamations about the will of the people and the rule of law, about the sanctity of the vote and the integrity of the U.S. constitutional system may seem like so much gas in light of what actually happened. When all was said and done, we are going to hear, it came down to raw politics, to which side had the political stamina and muscle to get its way.

It’s justifiable for supporters of Al Gore to grouse that he was done in by politics, just as it was justifiable for supporters of the Democratic presidential candidate in 1876, Gov. Samuel J. Tilden of New York, to grouse that he had won the popular vote and had a solid claim to the electoral votes of three contested states, only to see Republican nominee Rutherford B. Hayes scheme his way into office. It may be justifiable, but it is not entirely fair, because it maligns the good name of politics.

Although politics has become a dirty word, it is what the 2000 presidential election, and every other U.S. election, were all about. Aptly defined, politics is both a process--in which negotiations, deals and compromises prevail over force or fiat--and a system--in which competing interests are reconciled either by settling on an officeholder, as we do when we go to the polls, or on a policy, as our officials do when they make law. For all the abuses heaped upon it, politics is essential to democracy.

Yet, the 2000 presidential election was not political in this time-honored sense. From the moment on Nov. 7 that the Florida vote was declared too close to call and that state’s electoral votes were placed in limbo, politics surrendered and partisanship took over. These two words are usually used interchangeably, but there is a world of difference between them. If politics is a process of reconciliation, partisanship is an attitude of obduracy, one that might be called anti-political. It relies not on negotiation but on brinkmanship, not on men of good will attempting to reach a resolution but on men of mutual ill will trying to force one. Politics looks for a way to reach accommodation. Partisanship posits what the resolution ought to be and then employs every means available to get there. Or, put another way, politics assumes a means and works toward an end. Partisanship assumes an end and then works toward a means.

This is more than semantics. It is a difference with enormous relevance in trying to understand what happened over the last five weeks and, for that matter, over the last eight years, when U.S. politics turned savagely partisan. It is also why comparisons of this election to the election of 1876 may be instructive but misleading, because the two aren’t really analogous. One, 1876, was resolved through politics; the other, 2000, through partisanship.

This isn’t to say that in 1876 the combatants were any less embittered and furious at one another. Tilden, who challenged Radical Reconstruction, was lacerated by Republicans as a traitor to the Union; Hayes was blasted by Democrats for the scandals of the Republican Ulysses S. Grant administration and for the economic depression that wracked the nation on its centennial. The enmity only intensified when Tilden, one electoral vote short of victory, was trumped by Republican canvassers who invalidated Democratic votes in South Carolina, Louisiana and Florida, thus forcing Congress to decide which slate of electors to certify. So enraged were Tilden supporters that they threatened “Tilden or Blood” and offered to send an army to Washington to force Tilden’s inauguration.

But for all the partisan heat, there was a sincere desire for a solution on terms acceptable to both sides. Because the Republicans controlled the Senate and Democrats the House, and because the Constitution was unclear as to which would actually count disputed electors, congressional Democrats and Republicans sought a political truce. Though the speaker of the House thought it amounted to “raffling” the presidency, Congress, on Jan. 29, 1877, in a bipartisan vote, delegated its powers to determine electors to an Electoral Commission. Five of its members were from the House, five from the Senate, evenly divided between the parties, and five from the Supreme Court, two Democratic and two Republican justices who were then to select a fifth justice, essentially the swing vote.

It was generally understood when this agreement was reached that the last appointment was to be a rotund old politico named David Davis, who had been nominated to the court by Abraham Lincoln after serving for years as a circuit judge in Illinois. One reason that Democrats acceded to the commission was that Davis, though nominally a Republican, was known as a man with shrewd political instincts and a fiercely independent temperament. That may be why, shortly after his appointment to the commission, the Illinois Legislature co-opted him to become their senator and forced him to resign. His replacement, Republican Justice Joseph P. Bradley, was also considered even-handed, even sympathetic to Tilden’s complaints, but he succumbed to political pressures and cast the swing vote to recognize Hayes’ electors in the contested states, thus assuring Hayes the presidency on three straight-party votes of 8-7.

What redeemed this from rank partisanship was not only that the parties agreed on the commission but also that after its membership had been chosen, Democrats and Republicans met at the Wormley Hotel in Washington to find middle ground and end the dispute. As it turned out, Democrats renounced their claim to the presidency in exchange for assurances that Hayes would withdraw federal troops from the South and grant other concessions that effectively united the parties in common cause. Thus was the election resolved on the basis of pure politics.

This is not to say that this political solution was a good or just one. By pointedly excluding the interests of African Americans in their deliberations, the conferees ended Reconstruction and condemned black freedmen to Jim Crow. But because the process was political, drawing on both parties, it lent some legitimacy to Hayes’ presidency.

In election 2000, partisanship prevailed. There were no negotiations, compromises or even moderating pronouncements, much less an Electoral Commission to decide the issues. When Gore suggested that both sides agree to a statewide hand recount in Florida, Republicans didn’t even bother to respond, preferring to pull the levers of partisanship in the Florida secretary of state’s office and later in the Florida Legislature. Republicans accused Democrats of trying to steal the election, while Democrats indulged once again in the politics of victimization.

Ostensibly this was because the courts, applying the rule of law, were to decide whether to allow recounts, which would have been ideal had not partisanship interceded again. Republicans distrusted the Florida Supreme Court, whose justices were all Democrats and who, in the eyes of their detractors, were trying not to apply the law impartially but applying it so that Gore would have a good chance of winning. Similarly, Democrats distrusted the U.S. Supreme Court, at least five of whose judges, all Republican appointees, seemed determined to award Geroge W. Bush the presidency no matter how they had to bend the law to do it.

Everyone knew courts were ideological. Most even knew they were political in the sense that they could not be shielded entirely from social and political pressures. What Americans did not believe was that the courts were partisan--that they would, in effect, commandeer the election for a particular party. Thus was the election decided not by politicians seeking accommodation, as in 1876, but by partisans on the U.S. Supreme Court seeking victory.

The oddity of this is that while in 1876 the people were angry and the politicians amenable to compromise, in 2000, it was the people who seemed to desire resolution and the politicians who didn’t. Historians may ponder this and discover that Americans were less partisan as a backlash against the partisanship of the major parties. But the answer to why Bush and Gore succumbed to partisanship may just be that in 1876 the parties were highly factionalized and could always find opposite numbers with whom to deal, while in 2000, the parties are homogeneous--Republicans having read out moderates and Democrats having watched conservatives defect--so that there is no one across the aisle with whom to bargain. In this situation, the more fanatical the party, the more likely its success.

We are left, then, with a country echoing with bromides of unity but facing a wide divide. But don’t blame politics. Politics might have gotten us out of this situation with a modicum of rancor. Partisanship didn’t. *